Divorce is complex and can create lots of problems for both parties involved.
Although it can be tricky to navigate, one part of divorce that should not be overlooked is the act of updating your Will.
We always advise that you review your Will whilst going through the divorce process – to protect your estate until the divorce is final – and then again once the divorce is finalised and your position is clear.
Why do I need to make a new Will?
Your circumstances might have changed due to your divorce, so you’ll need to ensure your assets are shared as per your current wishes.
When you get divorced your ex-partner is treated as if they had died at the time the marriage or civil partnership was dissolved, but the rest of the Will remains intact and enforceable.
This means that any gifts or appointments in the Will that pertain to the ex-spouse would not take effect, effectively treating them as having predeceased the testator (you).
However, your ex-spouse may still be able to receive assets from your estate after divorce through Will contestation – if you fail to update and renew a valid Will.
For example, if your ex-spouse can prove that revoking their inheritance would cause them significant financial hardship, the Court may grant a portion of your estate to them as compensation.
Making a new Will after divorce allows you to:
- Make sure your estate is divided up the way you want.
- Ensure any new partners are provided for.
- Ensures all your children are provided for.
In essence, you are ensuring that your wishes cannot be contested by your previous spouse once you’re gone.
New marriages and blended families
Entering a new marriage, or blending families, is also a reason for the need to update or write a new Will.
It is important to know that a Will remains in place until it is invalidated by a new marriage.
So, after your divorce, your estate will likely still be passed to your ex-spouse until you remarry or rewrite your Will.
A new marriage might mean new wishes that need to be distributed or an existing estate needs to be shared amongst a wider group of people.
You might also want to include new beneficiaries – this could be children from a new marriage, for example.
Including provisions for a dynamic family structure can significantly influence the content of your new Will, especially with the complexities surrounding blended families.
This adjustment helps ensure fairness and clarity in how you distribute your assets, preventing potential disputes among family members.
You may have financial obligations to your ex-spouse or children (such as Child Benefit) so this needs to be considered when creating or updating your new Will.
If you want to protect your children’s inheritance once you remarry, you can arrange to place your assets, investments, and property into trust on your death.
You can also arrange for the trust to provide your surviving spouse or civil partner with an annual income while they are alive, and then when they die, your estate passes directly to your children.
What do I need to consider?
There are key matters to consider when creating or updating your new Will which are important in ensuring your wishes are reflected accurately.
Our family law experts will advise you on how to divide your assets during your divorce process if you have not already done so.
If you have debts, such as mortgages or loans, you need to make sure your new Will clearly outlines how they are to be settled.
It’s important to consult with professionals who are well-versed in the local legislation to ensure your Will complies with all legal requirements and truly reflects your wishes.
Entering a new marriage, and thus obtaining a new marital status, might also affect your Inheritance Tax liability so it’s important to understand how your tax obligations could change.
Having minor children might also encourage you to set up trusts that will manage their inheritance until they reach a specific age.
This will ensure they are set up with finances that will aid them as they grow up and protect your estate from Inheritance Tax.
Choosing the right executors and trustees involves thoughtful consideration.
These individuals will have significant responsibilities in managing and executing your Will and any trust you create.
It’s crucial to select people who are not only trustworthy but also have the capability to handle these duties, possibly for many years.
Finally, you must choose dependable and trustworthy individuals who will act as the executors of your Will and trustees of any trusts you establish.
Now – post-divorce – is the best time to review and update your Will, as this will provide you with the peace of mind and knowledge that you have secured financial security for you and your loved ones.
If you have yet to write a new Will and have just gone through a divorce, please contact our experts today.